Constitutionality
of new ordinance focus of challenge
By COOKSON BEECHER
Capital Press
A direct-market farmer in Western Washington has sued San Juan County over a recently passed ordinance that would require some vendors to get a permit to sell in public places.
Public places include sidewalks, public parks, streets and rights of way, according to the ordinance, adopted July 14.
In the lawsuit, Gary Franco, co-owner of Madrona Farms on Lopez Island, is represented by the libertarian Institute for Justice to fight for his constitutional right to earn a living free from unreasonable governmental interference.
"That right shouldn't be at the mercy of businesses that want to protect their own interests," institute staff attorney Michael Bindas said, referring to local brick-and-mortar businesses that the lawsuit says pressured the county council to adopt the ordinance.
Filed in state Superior Court on Sept. 16, the suit asks the judge to declare the ordinance unconstitutional.
Until the ordinance was adopted, Franco sold his produce and freshly picked produce from other area farms at locations in the San Juan islands, primarily on Orcas Island.
Under the ordinance, non-exempt vendors selling from any county-owned public property must obtain and post a "Public Place Use Permit."
In addition, the vendor applying for a permit must obtain the written consent of all business owners within 25 feet of the site and pay a fee of $50 per day.
Fines for violating the ordinance will be "not more than $250" for each hour the violation occurs.
Exemptions from the permit include newspaper sellers; transient vendors such as peddlers and ice cream trucks; charitable, religious and fraternal non-profit organizations; and county-authorized events such as art fairs, farmers' markets, fairs and parades, according to the ordinance.
The ordinance also exempts farmers, gardeners and others who produce and sell their own produce, but not those who also sell other farmers' goods.
Bindas said Franco's enterprise poses no more of a threat to the ordinance's stated goal of protecting public health and safety than exempted vendors, making the ordinance a form of "economic protectionism."
In an interview with Capital Press, the county's prosecuting attorney, Randall Gaylord, said chamber of commerce members and property owners urged the county to adopt the ordinance during a public hearing.
He also said a lot of the farmers who sell at the Saturday farmers' market wanted the county to be fair, pointing out that they pay to sell at the market and that they didn't want to see Franco get a free ride.
"The issue here is he's reselling other farmers' produce," Gaylord said.
Under state law, government entities are not allowed to require a farmer who sells his or her own produce on public property to get a permit. But that does not apply to farmers who sell other farmers' produce as well.
In a Sept. 21 e-mail to Capital Press, Franco said he served as a "vital conduit" between fellow farmers and consumers and described that as a win-win-win situation for everyone involved.
More online
To read the legal complaint and the ordinance: www.ij.org/images/pdf_folder/economic_liberty/wa_vending/wa-vending-complaint_9-16-09.pdf
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